I ain’t afraid of no ghost!
As such, in December 2016, I argued that ghostwriting is one tool at the profession’s disposal in the battle to increase to access to justice. The post is here. A quick recap:
- Rule 1.2(c) authorizes lawyers to enter into limited representation agreements;
- While ghostwriting used to be frowned upon, the trend is to conclude that it’s a permissible form of limited representation;
- undisclosed ghostwriting does not provide a self-represented litigant with an unfair advantage;
- undisclosed ghostwriting does not constitute misrepresentation by omission;
- lawyers who “ghostwrite” must abide by the Rules of Professional Conduct while providing limited services; and,
- lawyers should be aware of court rules that require self-represented litigants to disclose having received assistance from a lawyer.
Last week, the Mississippi Bar issued Ethics Opinion 261. The opinion addresses two questions:
- Is it ethical for a lawyer to prepare documents for pro se litigants?
- If the answer to question 1 is yes, is the preparing lawyer required to disclose either the name of the preparer or that the document was prepared by a lawyer?
Here’s a summary of the Mississippi Bar’s conclusions.
On the first question:
- limited representation “is an important means of providing access to justice for all persons regardless of financial resources;”
- as long as doing so is reasonable and the client fully understands the limitation, limiting a representation to writing or preparing a document is a permissible; and
- lawyers who provide limited representation must abide by “the full panoply of ethical obligations.”
As to the second question:
- the preparing lawyer is not required to disclose having provided assistance;
- undisclosed assistance does not constitute misrepresentation by omission; and,
- undisclosed assistance does not provide an otherwise self-represented litigant with an unfair advantage.
The Mississippi Bar added a few notes of caution.
First, the opinion stresses the importance of ensuring that the client understands what it means to receive “limited representation” in the form of ghostwriting.
- “For example, if the lawyer only drafts a motion for summary judgment but does not appear at the hearing, the client will have to present the motion and respond to questions from the court that the client may be unable to answer.”
Second, the opinion makes clear that a limited representation is exactly that: limited. It’s likely unethical for a lawyer to use a limited scope representation as cover to participate actively & substantially in the matter on an ongoing basis. That would be deceptive.
Finally, the opinion alerts lawyers to the fact that, like this blog, it’s limited to an analysis under the Rules of Professional Conduct. Other law, including court rules, might require disclosure.